Jiwa Ram and ors. Vs. Gangoli - Court Judgment

LegalCrystal Citation

legalcrystal.com/458849

Subject

Criminal

Court

Allahabad

Decided On

Nov-17-1948

Judge

Seth, J.

Reported in

AIR1949All392; 1949CriLJ595

Appellant

Jiwa Ram and ors.

Respondent

Gangoli

Excerpt: - - it is interesting to note that the madras case relied upon by the learned counsel for the petitioners wasjjecided by curgenven j,,on 11th september 1928. the learned judge had occasion to re-consider this very matter fourteen days later on 25th september 1928, in ponnusami udayar and another v. (c) of section 195(i); whether it denotes the transaction of forgery as a whole, so that the court is debarred from taking cognizance of that transaotion, including the shares taken in it by non-parties as well as parties, or whether it refers only to the share taken in the transaction by a party, so that power to proceed against non-parties is not affected......and the court was not competent to take cognizance of these offences on a private oomplaint. the learned magistrate ruled that fazal ahmad and kishori were not parties to the proceedings in which the compromise application was filed and- therefore cognizance of the case could be taken against them on a private complaint. the learned magistrate, further, ruled that jiwa bam could be prosecuted for an offence under s, 465/109, penal code, on a private complaint because the offence was alleged to have been committed outside the court before the compromise was filed. the learned magistrate, however, held that for jiwa barn's prosecution under section 471, penal code, a complaint from the court was necessary and directed the chargoaheet to be amended by dropping the charge under 8. all,.....

Judgment:ORDER

Seth, J.

1.Applicant Jiwa Bam was prosecuted for an offence under Section 420, Penal Code, on a private complaint. A petition of compromise was filed in the case stating that the offence had been compounded. The complainant alleged that certain words were interpolated in the compromise after it had been signed and executed. The complainant, therefore, filed a further complaint against Jiwa Earn and two others, namely Fazal Ahmad and Kiahori. In this complaint it was alleged that Jiwa Earn, Fazal Ahmad and Ki. Bhori had committed offenceB under Section 465/109, Penal Code, and, further, that Jiwa Ram had committed an offence under Section 471, Penal Code, also. The case proceeded in the Court of the trying Magistrate up to the stage when proseoution evidence was finished and charges were framed against the three accused persons named above and a date was fixed for hearing the defence evidence. The three accused persons, who are the applicants in this reference and who shall hereafter be referred to as the applicants, made an application objecting to the case being pro-ceeded with on the ground that the prosecution was illegal inasmuch as the offences charged fell within the purview of Section 195(l)(c), Criminal P. C, and the Court was not competent to take cognizance of these offences on a private oomplaint. The learned Magistrate ruled that Fazal Ahmad and Kishori were not parties to the proceedings in which the compromise application was filed and- therefore cognizance of the case could be taken against them on a private complaint. The learned Magistrate, further, ruled that Jiwa Bam could be prosecuted for an offence under S, 465/109, Penal Code, on a private complaint because the offence was alleged to have been committed outside the Court before the compromise was filed. The learned Magistrate, however, held that for Jiwa Barn's prosecution under Section 471, Penal Code, a complaint from the Court was necessary and directed the chargoaheet to be amended by dropping the charge under 8. All, Penal Code, against Jiwa Bam.

2. The applicants went up in revision to the Sessions Judge of Muttra who has referred the case to this Court with the recommendation that the entire proceedings against all the three applicants be quashed. It appears that the learned Sessions Judge haa not taken the trouble to sorutiniae the judgment of the learned Magistrate with proper care. The learned Sessions Judge seems to think that the learned Magistrate had ruled that Section 195(i)(c), Criminal P. C, did not apply to the case because 8. 465 was not specifically mentioned therein. The learned Magistrate does not appear to have said anything of the kind in his order. As already stated, the reasons assigned by the learned Magistrate for overruling the objections of the applicants were that two of them were not parties to the earlier proceedings . and one of them was alleged to have committed the offence before the compromise petition was brought on the record of the Court. The learned Sessions Judge has not disclosed any other reason for setting aside the order of the learned Magistrate against Jiwa Bam and for quashing the proceedings as against him.

3. I have, however, given independent consideration to this matter and have reached the conclusion that cognizance of the offence alleged to have been committed by Jiwa Kam could be taken only upon a complaint of the Court and could not be taken upon a private complaint. The learned Magistrate, in overruling Jiwa Ram's objection, has relied upon a decision of a Full Bench of this Court in King Emperor v. Kushal Pal Singh : AIR1931All443 wherein it Was laid down that Clause (c) of Section 195, Criminal P. C, applies only to cases where an offence is committed by a party, as such, to a proceeding in any Court in respect of a document which has been produced or given in evidence in such pro-ceeding; Jiwa Earn was already a party to the proceeding in which the compromise petition was put in. The compromise petition was prepared with the avowed object of being produced in those proceedings. The object of the alleged forgery was to have recorded a compromise differing in its contents from the one settled between the parties. If it be ultimately found that the offence of forgery was committed by Jiwa Bam, there cannot be slightest doubt that it was committed by him as a party to the proceedings under 8. 420, Penal Code. I am, there, fore, of the opinion that Jiwa Ram cannot be prosecuted for the alleged offence under Section 465/109, Penal Code, on a private complaint and the proceedings against him should be quashed.

4. I am, however, unable to accept the recommendation of the learned Sessions Judge with regard to the other two applicants, Fazal Ahmad and Kishori. The learned Sessions Judge has expressed the view that in a case in which all the offenders were not parties to the proceeding in which forgery is alleged to have been committed, the sanction or complaint of the Court is necessary for the prosecution of even those persons who were not parties to the pro-ceeding. He has derived support for this view from a decision of the Bombay High Court in In re Narayan Dhonddev Bisbud, 6 I. 0. 529 : (12 be m, L. B, 383), in which it has been held that the word 'offence' in Section 195(i)(c), Criminal P. C, is designedly uaed in somewhat abstract manner and that it is the 'offence' itself, not any particular offender's offence, which the section aims at. The learned Counsel for the petitioners has further relied on a decision of the Madras High Court in Parianna Muthirian v, M. Vengu Ayyar and others A.I.R. (16) 1929 Mad. 21 : (30 Cr. L. J. 322). The observations in the Madras case are obiter; so the Bombay decision is the only case in support of this view. It is interesting to note that the Madras case relied upon by the learned Counsel for the petitioners wasjjecided by Curgenven J,, on 11th September 1928. The learned Judge had occasion to re-consider this very matter fourteen days later on 25th September 1928, in Ponnusami Udayar and another v. Emperor : AIR1929Mad115 , wherein he expressed a contrary view dissenting from the view of the Bombay High Court. The learned Judge observed:

The question is whether, when an offence of forgery is committed by more than one person, one at least being a party to the proceeding in which the document is produced such participants in the forgery as are not parties to the proceeding may be prosecuted otherwise than under the provisions of Sections 195 and 476, Criminal P. 0. The answer to the question depends primarily upon the construction to be placed upon the ternb. 'offence' as it is used in ol. (c) of Section 195(i); whether it denotes the transaction of forgery as a whole, so that the Court is debarred from taking cognizance of that transaotion, including the shares taken in it by non-parties as well as parties, or whether it refers only to the share taken in the transaction by a party, so that power to proceed against non-parties is not affected.

The learned Judge answered the question by holding that the word 'offence' refers only to the share taken in the transaction by a party so that power to proceed against non-parties is not affected. A number of authorities, including the Bombay case, were cited before the learned Judge and in dealing with them he observed eft follows:

A large number of rulings have been brought to my attention and with a single exoeption they favour the latter of the two constructions. The exception is afforded by a Bombay case In re Narayan Dhonddev Bisbud, 6 I. C. 529 : (12 be m. L. B. 383). The learned Judges who decided that Case held that it is the 'offence' in Itself, not any particular offender's offence which the aims at and in the case under referenoe the 'offence' would mean the offence generally of forgery....I must confess that I feel much in sympathy with the view that this is how the law should stand. Nevertheless, this case not only stands alone but makes no reference to the large body of judicial opinion which favours a contrary interpretation.

The learned Judge expressed the result arrived at by him on an examination of the various authorities cited before him in the following words:

It is at least incontestable, however, that with the single exception of the Bombay case, here and elsewhere, the section has been uniformly eonstriied in one way. In this state of the authorities, it is impossible for me to rule that the learned Sub-Divisional Magistrate baa erred in law in deciding that the trial of the two petitioners should continue,

Nineteen years have elapsed since the decision of this Madras case. The learned Counsel for the petitioners has not been able to point out a single case decided since then in which the Bombay view might have been followed. It follows, therefore, that even now the Bombay case is the only exception to the interpretation uniformly put on Section 195(l)(c), Criminal P. C. It will serve no useful purpose to refer to the authorities cited in the Madras case. I find myself in respectful agreement with the view expressed in Ponnusami Udayar and another v. Emperor : AIR1929Mad115 .

5. According to Section 4(o), Criminal P. C., 'offence' means any act or omission made punish, able by any law for the time being in force. The act which has been made punishable by Section 465, Penal Code, has been described in Section 462, Penal Code, to be the making of any false document or part of a document with a particular intent. It seems obvious to me that when more than one person combine to commit forgery, the act of each individual forger is distinct from the act of another. According to the Bombay decision, it is the entire transaction that constitutes the offence. This interpretation is opposed to the definition of the word 'offence', already quoted, because, according to 8, l(o), Criminal P. C, it is the act, and not the transaction, which constitutes the offence.

6. For the reasons indicated above, I am of the opinion that the offences with which Fazal Ahmad and Kishori were charged were distinct from the offence with which Jiwa Bam was charged. Fazal Ahmad and Kishori, not being parties to the proceedings under Section 420, Penal Code, could, therefore, be prosecuted upon a private complaint.

7. Accordingly, I accept the recommendation of the learned Sessions Judge to this extent that I direct the proceedings against Jiwa Bam to be quashed, but I decline to accept the recommendation of the learned Sessions Judge with regard to Fazal Ahmad and Kishori. The case against these two applicants shall proceed according to law.